1. Collection of Information.
1.1 Survey Information. We collect information from you and other individuals by various methods, including, but not limited to, when you voluntarily complete our survey, order form, or a registration page either online or offline, or by means of online or offline surveys, order forms, or registration pages operated by third parties (collectively, “Survey”). (As used herein, “online” means using the Internet, including the Website, and related technologies, and “offline” means by methods other than online, including in person, in the postal mail, using telephones and cell phones, and other similar means.) In the Surveys, the Company or a third party (a “Third Party”) may ask an individual to provide various information to us, which may include your name, email address, street address, zip code/postal code, telephone numbers (including wireless phone numbers and wireless carriers), SMS messaging details (e.g. date, time and content of the SMS message), birth date, gender, salary range, education and marital status, occupation, social security number, employment information, personal and online interests, and such other information as may be requested from time to time (together, “Survey Information”). We may also collect information concerning you from another source and use that information in combination with information provided from this Website. Completing the Survey(s) is completely voluntary, and individuals are under no obligation to provide Survey Information to us or a Third Party, but an individual may receive incentives from us or a Third Party in exchange for providing Survey Information to us.
1.2 Third Party List Information. We collect information from you when you provide information to a third party and we subsequently purchase, license, or otherwise acquire your information from the third party (the “Seller”). Such purchased information may include, but is not limited to, your name, email address, street address, zip code/postal code, telephone numbers (including wireless phone numbers and wireless carriers), SMS messaging details (e.g. date, time and content of the SMS message), birth date, gender, salary range, education and marital status, occupation, industry of employment, personal and online interests, and such other information as the individual may have provided to the Seller (together, “Third Party List Information”). When acquiring Third Party List Information, we seek assurances from the Seller that the Seller has a right to transfer the Third Party List Information to us and that the Seller has a right to provide offers from advertisers to you (the individual whose personal information is included on the Seller’s list).
1.3 Other Information. Other occasions when we obtain your information include (1) when you make a claim for a prize or seek to redeem an incentive offered by us or by a Third Party, (2) when you request assistance through our Customer Service Department, and (3) when you voluntarily subscribe to our services or newsletters (together, “Other Information”).
1.4 Cookies, Web Beacons, and Other Information Collected Using Technology. We currently uses cookie and web beacon technology to associate certain Internet-related information about you with information about you in our database. Additionally, we may use other new and evolving sources of information in the future (together, “Technology Information”).
(a) Cookies. A cookie is a small amount of data stored on the hard drive of your computer that allows us to identify you with your corresponding data that resides in our database. You may read more about cookies at http://cookiecentral.com. Individuals who use the Website need to accept cookies in order to use all of the features and functionality of the Website.
(b) Web Beacons. A web beacon is programming code that can be used to display an image on a web page, but can also be used to transfer an individual’s unique user identification (often in the form of a cookie) to a database and associate the individual with previously acquired information about an individual in a database. This allows us to track certain websites you visit online. Web beacons are used to determine products or services you may be interested in, and to track online behavioral habits for marketing purposes. For example, we might place, with the consent of a Third Party website, a web beacon on the Third Party’s website where baseball products are sold. When “Pat”, an individual listed in our database, visits the fishing website, we receive notice by means of the web beacon that Pat visited the baseball site, and we would then update Pat’s profile with the information that Pat is interested in baseball. We may thereafter present offers of baseball related products and services to Pat. In addition to using web beacons on web pages, we also use web beacons in email messages sent to individuals listed in our database.
1.5 Outside Information. We may receive information about you from Third Parties or from other sources of information outside of the Company including information located in public databases (“Outside Information”).
1.6 Your Individual Information. As used herein, your Individual Information means Survey Information, Third Party List Information, Other Information, Technology Information, Outside Information, and any other information we gather or receive about you such as usage data, file transfer and viewing data.
1.7 No Information Collected from Children. We will never knowingly collect any personal information about children under the age of 13 (a “Minor”). The Website is not directed to Minors. If we obtain actual knowledge that we collected personal information about a Minor, that information will be automatically deleted from our database. Because we do not collect such information, we have no such information to use or to disclose to Third Parties. We have designed this policy in order to comply with the Children’s Online Privacy Protection Act (“COPPA”). You may read more about COPPA at http://www.coppa.org. If you become aware that your child, a Minor, has provided us with personal information without your consent, you should contact us immediately.
1.8 Log File Information. When you log-in to access your account, our servers may automatically record and archive certain information that web-browsers send whenever visiting a Website. These server logs may include information vital to validating your authorization to access the account. Information, such as a web request, Internet Protocol (the “IP”) address, browser type, browser language, referring pages, exit pages and visited URLs, platform type, click counts, pages viewed and in what order, time spent, the date and time of the request, and other important data is necessary to validate and authorize your entry and activity on the Website.
1.9 Credit Card Information. We may in certain cases collect credit card numbers and related information, such as the expiration date of the card (“Credit Card Information”) when you place an order with us. When the Credit Card Information is submitted to us, such information is encrypted and is protected with SSL encryption software. We will use the Credit Card Information for purposes of processing and completing the purchase transaction, and the Credit Card Information will be disclosed to Third Parties only as necessary to complete the purchase transaction.
2. Use of Your Individual Information.
2.2 Email. We use your Individual Information to provide promotional offers by email to you. We may maintain separate email lists for different purposes. If you wish to end your email subscription from a particular list, you need to follow the instructions at the end of each email message to unsubscribe from the particular list.
2.2 (a) Content of Email Messages. In certain commercial email messages sent by us, an advertiser’s name will appear in the “From:” line but hitting the “Reply” button will cause a reply email to be sent to us. The “Subject:” line of our email messages will usually contain a line provided from the advertiser to us.
2.2 (b) Solicited Email. We only send email to individuals who have agreed on the Website to receive email from us or to individuals who have agreed on Third Party websites to receive email from Third Parties such as the Company. We do not send unsolicited email messages. As a result, legislation requiring certain formatting for unsolicited email do not apply to our email messages.
2.3 Targeted Advertising. We use your Individual Information to target advertising to you. When you use the Internet, we use Technology Information (see also Section 2.6) to associate you with your Individual Information, and we attempt to show advertising for products and services in which you have expressed an interest in the Surveys, indicated an interest by means of Technology Information, and otherwise. We may, at our discretion, target advertising by using email, direct mail, telephones, cell phones, and other means of communication to provide promotional offers to you.
2.4 Direct Mail and Telemarketing. We use your Individual Information to advertise, directly or indirectly, to you using direct mail marketing or telemarketing using telephones and cell phones.
2.5 Mobile Phone SMS Messaging. In certain cases, when requested by an individual, a Third Party may use your Individual Information to provide customized content and advertising via SMS messaging to your cell phone or wireless device. We are not responsible for the privacy practices or the content of such Third Parties.
2.6 Use of Technology Information. We use Technology Information (1) to match your Survey Information and Third Party List Information to other categories of your Individual Information to make and improve your profiles, (2) to track your online browsing habits on the Internet, (3) to determine which areas of our Websites are most frequently visited. This information helps us to better understand the online habits of individuals, including you, so that we can target advertising and promotions to you and other individuals.
2.7 Profiles of Individuals. We use your Individual Information to make a profile. A profile can be created by combining Survey Information and Third Party List Information with other sources of your Individual Information such as information obtained from public databases.
2.8 Storage of Your Individual Information. We store your Individual Information in a database on our computers. Our computers have security measures (such as a firewall) in place to protect against the loss, misuse, and alteration of Individual Information under our control. Notwithstanding such measures, we cannot guarantee that our security measures will prevent our computers from being illegally accessed, and your Individual Information on them stolen or altered.
2.9 Do Not Call Registry Compliance. By submitting your personal contact and/or financial information through the Website, you hereby grant written permission to the Company, its affiliated sites, and its business partners for contact via telephone, voice broadcasts, mail, SMS text message, and/or e-mail. Further, by registering on the Website you are consenting to receive phone calls from the Company, its affiliated sites, and its business partners for contact via telephone and thereby waive your right to file a claim with the Federal Trade Commission (FTC) or any other agency in reference to these calls or contacts.
3. Dissemination of Your Individual Information.
3.1 Sale or Transfer to Third Parties. THE COMPANY MAY SELL OR TRANSFER YOUR INDIVIDUAL INFORMATION TO THIRD PARTIES FOR ANY LEGALLY PERMISSIBLE PURPOSE IN OUR SOLE DISCRETION.
3.2 Order Fulfillment. We will transfer your Individual Information to Third Parties when necessary to provide a product or service that you order from such Third Party while using the Website or when responding to offers provided by us.
3.3 Legal Process. We may disclose your Individual Information to respond to subpoenas, court orders, and other legal processes.
3.4 Summary Data. We may sell or transfer non-individualized information, such as summary or aggregated anonymous information about all persons or sub-groups of persons.
3.5 Access. You have access to your Individual Information collected to provide an opportunity for you to correct, amend, or delete such information. Access can be obtained by contacting us. We may also grant advertising clients and email services providers’ access to your email address to verify the origin of your Individual Information collected.
3.6 Other. We may also disclose your Individual Information:
Where the information is public;
To protect the Website and our rights under;
To protect ourselves against liability or prevent fraudulent activity;
Where it is necessary to permit us to collect monies owing to us or to pursue available remedies or limit any damages that we may sustain;
To a person who needs the information because of an emergency that threatens the life, health or security of an identifiable person or group; or To our advisors, counsels, and similar trusted parties.
4. Privacy Practices of Third Parties.
4.1 Advertiser cookies and web beacons. Advertising agencies, advertising networks, and other companies (together, “Advertisers”) who place advertisements on the Website and on the Internet generally may use their own cookies, web beacons, and other technology to collect information about individuals. We do not control Advertisers’ use of such technology and we have no responsibility for the use of such technology to gather information about you.
4.3 Affiliated Companies. We may disclose, transfer, and sell your Individual Information to entities affiliated with the Company in our discretion. Should you be subject to an acquisition, merger, sale or other change of control or business entity status, we reserve the right to transfer or assign your Individual Information collected from the Website.
4.4 Service Providers. We may engage certain third parties to perform functions and provide services to us, such as identity verification, hosting and maintenance, customer relationship management, database storage and management, geocoding, business analytics, fraud prevention, business analytics, and direct marketing campaign services.
We will share your Individual Information with these third parties, only to the extent necessary for them to perform these functions for us, and only pursuant to binding contractual obligations requiring such third parties to maintain the privacy and security of your Individual Information.
5. Data Transfer and Storage.
You acknowledge that personal information will be collected and stored by us in Canada. By using the Website, you consent to the transfer of information to and/or storage of information outside of your country and in Canada.
6. Unsubscribe Procedures.
If you wish to discontinue receiving email messages from us, you have several options:
1. Unsubscribe from one email list. To unsubscribe from a particular list, either (1) send an email to [email protected] or (2) follow the instructions in each promotional email message sent by the Company.
2. Unsubscribe from all of our email lists. We reserve the right to add your Individual Information to multiple lists maintained by us. To globally unsubscribe from all of our lists, send an email to [email protected].
3. Unsubscribe from a particular SMS messaging campaign. To unsubscribe from a particular SMS messaging campaign on a cell phone, send “STOP” to the SMS message received by you. In addition, other methods to unsubscribe may be set forth on the Website where signed up for the SMS messaging campaign.
7. Choice of Law, Mandatory Arbitration and Venue
Unless otherwise required by a mandatory law of any applicable jurisdiction, these Agreements are subject to the law of the State of New York, United States, without regard to choice or conflicts of law principles. Further, you and the Company agree to the exclusive jurisdiction of the state and federal courts in Manhattan, New York to resolve any dispute, claim or controversy that arises from, out of, or in connection with this Agreement, that is not applicable to arbitration.
(1) The Company and you agree to arbitrate all disputes and claims between us and you. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of your use of any services, offers, promotions, or the Website, subsite, microsite or those of our partners.
References to “the Company”, “we” and “us” include our respective subsidiaries, and affiliates, and each of their agents, officers, directors, and employees, predecessors in interest, successors, and assigns. References to “you” include all authorized or unauthorized users of websites, subsites, or microsites, participants or beneficiaries of services, promotions, offers or Devices (collectively “Websites and Services”) under this or prior agreements between us.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by your continued use of the Website and Services, or your continued interaction with us (in correspondence and the like), you and the Company are each waiving the right to a trial by jury or to participate in a class action. This agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this agreement.
(2) A party who intends to seek arbitration must first send to the other, by either a reputable overnight carrier or certified mail, return receipt requested, or by email from us to you, if your address is not on file with us, a written Notice of Dispute (“Notice”). Please send us an email under the How to Contact Us section for the Company’s address (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If we do not reach an agreement with you to resolve the claim within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled.
(3) After we receive your Notice at the Notice Address that you have commenced arbitration, we will reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. (The filing fee currently is $400 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, we will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.ADR.org , by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless the Company and you agree otherwise, any arbitration hearings will take place in the county of your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, we will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
(4) If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of our last written settlement offer made before an arbitrator was selected, then we will: pay you the amount of the award; and pay your reasonable attorney fees, if any, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(5) The right to attorneys’ fees and expenses discussed in paragraph (4) supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or costs.
(6) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
8. Limitation of Liability. We exercise reasonable efforts to safeguard the security and confidentiality of your personal information; however, transmissions protected by industry standard technology and administered by humans cannot be guaranteed to be secure. We will not be liable for unauthorized disclosure of personal information that occurs through no fault of our own including, but not limited to, errors in transmission, access to your account by anyone, uses of your Member ID and password by a third party, your failure to comply with your security obligations, and the unauthorized acts of our employees.
9 . California User Consumer Rights. In accordance with California Civil Code Sec. 1789.3, California resident users are entitled to know that they may file grievances and complaints with the California Department of Consumer Affairs, 400 R Street, STE 1080, Sacramento, CA 95814; or by phone at 916-445-1254 or 800-952-5210; or by email to [email protected] . Sec. 1798.83 of the California Civil Code, grants residents of the State of California the right to request from a business with whom the California resident has an established business relationship, once a year, certain information with respect to the types of personal information that the business shares with third parties for those third parties’ direct marketing purposes and the identities of the third parties with whom the business has shared such information during the immediately preceding calendar year.